Includes the U.S. government export controls that companies need to abide by when exporting to this country.
The United States imposes export controls to protect national security interests and promote foreign policy objectives. The United States also participates in various multilateral export control regimes to prevent the proliferation of weapons of mass destruction and prevent destabilizing accumulations of conventional weapons and related materials. The Department of Commerce’s Bureau of Industry and Security (BIS) administers U.S. laws, regulations and policies governing the export, reexport, and transfer (in-country) of commodities, software, and technology (collectively “items”) falling under the jurisdiction of the Export Administration Regulations (EAR).
The primary goal of BIS is to advance the United States’ national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and by promoting continued U.S. strategic technology leadership. BIS also enforces antiboycott laws and coordinates with other U.S. agencies and countries on export control, nonproliferation, and strategic trade issues.
The EAR controls certain exports, reexports, or in-country transfers of purely commercial items, items that have both commercial and military applications (i.e., “dual-use” items), and less sensitive military items.
Items subject to the EAR may require a license prior to export, reexport, or transfer (in-country). BIS is comprised of two divisions: Export Administration (EA) reviews and adjudicates license applications for exports, reexports, and deemed exports/reexports (technology transfers to foreign nationals in/outside of the United States) subject to the EAR. Through its Office of Exporter Services, EA also provides information on BIS programs, conducts seminars at locations across the United States on the EAR’s requirements and compliance thereof, and provides guidance to individual exporters via telephone and e-mail. BIS’s other component, Export Enforcement (EE), is responsible for enforcement of the EAR and related statutes, and also performs significant outreach functions aimed at educating exporters on their compliance responsibilities.
Under the EAR, a license is required to export, reexport, or transfer (in-country) certain controlled items to end users in China. See the Commerce Control List in Supplement No. 1 to Part 774 of the EAR for item-specific information. In some cases, an end-use check, which can take the form of either a Pre-license Check (PLC) or Post-Shipment Verification (PSV), is also required. End-use checks are completed by BIS’s Export Control Officers (located in China, Hong Kong, Singapore, India, the UAE, Germany, and Turkey), EE agents participating in the BIS Sentinel Program, and FCS employees upon request from BIS. U.S. exporters are required to obtain an End-User Statement from China’s Ministry of Commerce (MOFCOM) for licensed transactions valued over $50,000 as part of the license application process. In certain circumstances, an End-User Statement may be required for transactions of a lower dollar value.
Generally, the licensing policy for China is to approve items for civil end use to civil end users. In addition to the license requirements for items specified on the Commerce Control, there are additional restrictions on items listed in Supplement 2 to Part 744 that are destined to a military end user or for military end use, or on any items supporting weapons of mass destruction; these license applications are reviewed with a presumption of denial. See Parts 742 and 744 of the EAR. Specific party-based license requirements also exist and usually apply to all items subject to the EAR; these parties are enumerated on BIS’s Entity List.
End users in China can apply for the Validated End-User (VEU) program. This allows end users who have an established track record of engaging in only civil activities to receive exports of specified items without the need for their suppliers to first obtain individual export or reexport licenses. Interested companies can apply by submitting a request for an advisory opinion to BIS, as described in Section 748.15 of the EAR.
U.S. exporters should consult the EAR for information on how export license requirements may apply to the sale of their goods to China. If necessary, a commodity classification request may be submitted in order to determine how an item is controlled (i.e., the Export Control Classification Number (ECCN)). Exporters may also request a written advisory opinion from BIS about the application of EAR’s end use and end user-based licensing requirements. Information on commodity classifications, advisory opinions, and export licenses can be obtained through the BIS website.
Exporters are also urged to check lists identifying specific parties (persons, companies, and entities) that are under U.S. government sanctions or for whom export licenses or other authorization may be required. Information on these lists, which include the Entity List, Denied Persons List, Unverified List, Specially Designated Nationals List, and Debarred List, is available on the BIS website.
Inclusion on BIS’s Entity List creates a license requirement for the export of items to listed parties beyond the commodity-based license requirements effected by the Commerce Control List (CCL). Exports to listed parties generally require a license regardless of the commodity classification (EAR99 or under an ECCN), though in some instance the license requirement may be for all items on the CCL only, for example. Specific license requirements are included within the party’s Entity List entry. Parties that have been identified as posing a threat to the national security or foreign policy of the U.S. can be nominated for inclusion on the EAR. In recent years, Entity Listings of Chinese parties have been predicated upon prohibited military end use, unlicensed transshipment of items to embargoed destinations, human rights violations in the Xinjiang Uyghur Autonomous Region, and military activities in the South China Sea, amongst other rationale.
A consolidation of export screening lists of the Departments of Commerce, State, and the Treasury can be found online. Exporters who engage in unauthorized transactions with listed parties may themselves become subject to administrative and/or criminal penalties.
Additional information about U.S. export controls administered by BIS may be obtained from the BIS Export Control Officer at the U.S. Commercial Service, U.S. Embassy Beijing, Tel: (86) (10) 8531-3301/4484 or Fax: (86) (10) 8529-6558.
Executive Orders, or Regulatory Actions Impacting Exports or Re-exports to China
In 1990, the U.S. Congress passed P.L. 101-246, Title IX of which is commonly referred to as the “Tiananmen Square Sanctions.” Among other things, this law restricts the U.S. licensing of exports and re-exports of crime control and crime detection equipment and instruments listed in the EAR to China, as well as the licensing of defense articles and defense services subject to the International Traffic in Arms Regulations (ITAR). These restrictions apply regardless of the end user in China. The prohibition on exports of munitions to China remains in place.
In addition, although foreign made items incorporating less than 25% controlled U.S.-origin content are generally not subject to the EAR for purposes of export or reexport to China, there is no de minimis for exports to China of foreign made items incorporating U.S.-origin 600-series and 9x515 content. Items classified under these ECCNs were previously listed on the USML and cannot be exported to China without prior authorization.
The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) expands the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) to address growing national security concerns over foreign exploitation of certain investment structures which traditionally have fallen outside of CFIUS jurisdiction. While China is not mentioned specifically in FIRRMA, there will be impact on Chinese investment in the United States. CFIUS has greater visibility of Chinese investment into the United States, which in turn will lead to heightened scrutiny of potential Chinese investments in areas related to critical technologies, critical infrastructure, businesses with sensitive personal data, and certain types of real estate transaction.
Other U.S. agencies regulate exports of more specialized items. For example, the U.S. Department of State’s Directorate of Defense Trade Controls administers U.S. export controls covering defense articles and defense services that appear on the U.S. Munitions List under the ITAR. Information on U.S. Department of State export licensing procedures, the ITAR, and the Arms Export Control Act can be found at Tel: (202) 663-1282.
The point of contact for U.S. Department of State licensing issues at the U.S. Embassy Beijing is the Economic Section, Tel: (86) (10) 8531-3000, Fax: (86) (10) 8531-4949.
The Department of Energy, Nuclear Regulatory Commission, FDA, and other agencies may also control and licenses exports to China.